Civil Liberties

Post-Newtown "Assault Weapon" Laws in Connecticut, New York Upheld

Second Circuit finds "intermediate scrutiny" of laws impacting Second Amendment allows full ban of certain weapons to pass constitutional muster.


The U.S. 2nd Circuit Court of Appeals today upheld various recent gun regulations passed in both Connecticut and New York against Second Amendment challenges. The decision combines appeals in New York State Rifle and Pistol Association el al. v. Cuomo, Schneiderman et al. and Connecticut Citizens Defense League et. al. v. Malloy, Kane et al.

The full decision

Summations and excerpts and comments shall commence herewith.

First, the root of the issue:

The New York and Connecticut laws at issue prohibit the possession of certain semiautomatic  assault weapons" and large?capacity magazines. Following the entry of summary judgment in favor of defendants on the central claims in both the Western District of New York (William M. Skretny, Chief Judge) and the District of Connecticut (Alfred V. Covello, Judge), plaintiffs in both suits now press two arguments on appeal. First, they challenge the constitutionality of the statutes  under the Second Amendment; and second, they challenge certain provisions of the statutes as unconstitutionally vague.

Judge Jose Cabranes thinks the challenged laws are (mostly) just fine:

the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large?capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness. The particular provision of New York's law regulating load limits, however, does not survive the requisite scrutiny. One further specific provision—Connecticut's prohibition on the non?semiautomatic Remington 7615—unconstitutionally infringes upon the Second Amendment right.

What the challenged New York law does:

New York enacted the Secure Ammunition and Firearms Enforcement Act (SAFE Act) on January 15, 2013. The SAFE Act expands the definition of prohibited "assault weapons" by replacing the prior two?feature test with a stricter one?feature test.    As the name suggests, the new test defines a semiautomatic firearm as a prohibited "assault weapon" if it contains any one of an enumerated list of military?style features, including a telescoping stock, a conspicuously protruding pistol grip, a thumbhole stock, a bayonet mount, a flash suppressor, a barrel shroud, and a grenade launcher…..

The SAFE Act also bans magazines that can hold more than ten rounds of ammunition or that can be readily restored or converted to accept more than ten rounds. Although New York had restricted possession of such magazines since 2000, the SAFE Act eliminated a grandfather clause for magazines manufactured before September 1994.

Even with the 10 round capacity, the SAFE Act made it illegal under most circumstances to put more than seven actual rounds in your magazine.

The post-Newtown Connecticut laws also challenged in these cases did most of the same things the New York law did, plus "additionally bans 183 particular assault weapons listed by make and model, as well as 'copies or duplicates' of most of those firearms."

The plaintiffs in the original cases think those laws unduly burden their Second Amendment rights. Lower court judges in both cases sort of agreed that they did, but that under "intermediate scrutiny" those burdens did not rise to the level of a constitutional violation the court would halt.

For some past discussion of how the question of "scrutiny" effects Second Amendment cases, see this and this.

The Appeals Court judge notes that dominant Supreme Court doctrine about the Second Amendment didn't make his decision perfectly clear:

Heller offered little guidance for resolving future Second Amendment challenges. The Court did imply that such challenges are subject to one of "the standards of scrutiny that we have applied to enumerated constitutional rights," though it declined to say which, accepting… that many applications of the Second Amendment would remain "in doubt."

The judge grants the weapons and parts at issue do fall under the general purview of Heller: "the assault weapons and large?capacity magazines at issue are 'in common use' as that term was used in Heller."

Even so, he's confident most of the challenged laws here are OK. First, these so-called "assault weapons" are not as commonly used for self defense in the home as the handguns at issue in Heller. Also:

No "substantial burden" exists—and hence heightened scrutiny is not triggered—"if adequate alternatives remain for law?abiding citizens to acquire a firearm for self?defense."….

both New York and Connecticut ban only a limited subset of semiautomatic firearms, which contain one or more enumerated military?style features. As Heller makes plain, the fact that the statutes at issue do not ban "an entire class of 'arms'" makes the restrictions substantially less burdensome. In both states, citizens may continue to arm themselves with non? semiautomatic weapons or with any semiautomatic gun that does not contain any of the enumerated military?style features. Similarly, while citizens may not acquire high?capacity magazines, they can purchase any number of magazines with a capacity of ten or fewer rounds. In sum, numerous "alternatives remain for law?abiding citizens to acquire a firearm for self?defense.

Thus, Judge Cabranes applies "intermediate scrutiny" to the laws and finds that if he thinks the legislature has a substantial interest in public safety, and that they have "drawn reasonable inferences based on substantial evidence" that their laws would improve public safety, then the bans are constitutionally OK.

The Judge believes it sufficiently proven that those banned weapons are more deadly when used in crimes, and indeed are "disproportionately used in crime, and particularly in criminal mass shootings like the attack in Newtown. They are also disproportionately used to kill law enforcement officers." (I do not know that the actual facts support this conclusion.) The actual facts certainly do not support that conclusion, certainly not the "disproportinately used in crime" part, and while it seems in at least one year surveyed semiautomatic handguns were used very often in police killings, not the sort of "assault weapons" at issue in these laws.

However, the Judge does agree that the New York law commanding no more than seven rounds in a magazine fails "intermediate scrutiny" muster:

we cannot conclude that New York has presented sufficient evidence that a seven?round load limit would best protect public safety. Here we are considering not a capacity restriction, but rather a load limit. Nothing in the SAFE Act will outlaw or reduce the number of ten?round magazines in circulation. It will not decrease their availability or in any way frustrate the access of those who intend to use ten?round magazines for mass shootings or other crimes. It is thus entirely untethered from the stated rationale of reducing the number of assault weapons and large capacity magazines in circulation. New York has failed to present evidence that the mere existence of this load limit will convince any would?be malefactors to load magazines capable of holding ten rounds with only the permissible seven.  

The judge found none of the restrictions unconstitutionally vague, even though one included a misspelling of "muzzle brake" as "muzzle break," but did find one specific Connecticut ban on one specific non-semiautomatic weapon, Remington 7615, to violate the Second Amendment and overturned it.

For the background on the legal arguments at stake in Heller and beyond, see my 2008 book Gun Control on Trial.

For what its worth, the SAFE Act at issue in New York is being widely ignored when it comes to regsitering previously legal but now illegal-minus-registration weapons.